Federal Judge Nixes Delaware’s Ban on Possessing ‘Ghost Guns’ and Home Manufacturing of Firearms

A federal judge in Delaware has ruled the state’s ban on possessing unserialized firearms and the private manufacturing of guns violates the Second Amendment, while keeping in place the state’s laws that forbid the dissemination of computer-aided design files or other code or instructions used in 3D printing gun parts.

U.S. District Judge Maryellen Noreika also upheld the state’s prohibition on “knowingly transport[ing], ship[ping], transfer[ring], or sell[ing] an unfinished firearm frame or receiver,” ruling that the “Distribution ban” as she called it does not impose any burden on keeping or bearing unserialized firearms.

For the most part, though, the plaintiffs were victorious in their arguments, with Noreika finding the possession and manufacturing bans facially unconstitutional under the Second Amendment and granting a permanent injunction that applies to the named plaintiffs, including Firearms Policy Coalition members.

The judge had previously granted a preliminary injunction against enforcing those provisions, so in that respect Thursday’s ruling isn’t all that surprising. Still, it’s always good to see a federal judge treat the Second Amendment with the respect that it deserves.

In many ways, the Third Circuit Court of Appeals has already done most of the legwork necessary for Noreika to reach her conclusions. The Third Circuit, for instance, has previously ruled that computer code is not expressive speech protected by the First Amendment, so she was arguably bound by precedent to rule that Delaware’s prohibition on the dissemination of CAD files and code used to 3D print gun parts doesn’t violate the Constitution.

Similarly, the Third Circuit has previously held that the term “arms” encompasses anything “necessary for [] a gun to function as intended,” which would include the frame and receiver. In Noreika’s view, that means the text of the Second Amendment covers all firearm frames and receivers, not just those “with a manufacturer’s label or serial number.”

Delaware’s argument to the contrary is that untraceable firearms and unfinished firearm frames or receivers with no serial numbers are not in common use and therefore do not constitute“Arms.” The Third Circuit, however, has foreclosed that argument, by making clear that the “common use” argument is addressed at Bruen’s second step. Moreover, the fact that Delaware’s law focuses on unserialized firearms and firearm components while allowing access to “firearms or components that have a serial number” does not matter because the constitutional understanding of “Arms” does not turn on serialization; it turns on whether something is used customarily for offensive or defensive purposes. Here, the evidence shows that law abiding citizens customarily use untraceable firearms and unserialized firearm components for constitutionally protected purposes, i.e., self-defense.

Delaware contended that criminals use “ghost guns” too, and that the prohibition on making and possessing unserialized firearms was meant to address “weapons connected with violent crime and criminality.” As Noreika pointed out, that framing “analogizes at ‘such a high level of generality’ that it risks ‘water[ing] down the right.'”

Indeed, at some level, firearms have always been weapons connected with violent crime and criminality, yet nobody seriously thinks an outright ban on firearms would pass constitutional muster. Instead, the more apt “why” in this case turns on the traceability of ghost guns versus serialized guns because functionally ghost guns are no different than serialized guns. The correct “why” here seems to be ensuring that law enforcement can trace weapons used in connection with a crime to the owner.

The historical analogies offered by Delaware, like restrictions on Bowie knives, trap guns, and gunpowder regulations all have a very different “why,” and in most cases a different “how” as well. They’re simply not close enough to suffice as analogues to Delaware’s outright ban.

While Noreika delivered a win for those who want to make and possess their own firearms, she also offered lawmakers a roadmap to make a constitutionally acceptable law dealing with privately manufactured firearms.

For example, had Delaware implemented a serialization process that required all currently owned self-manufactured firearms to be serialized with the state, that might pass constitutional muster. In addition, had Delaware required all future self-manufactured firearms to be serialized with the state within a certain timeframe after manufacturing, that too may be ok because in that situation Delaware would not be depriving Delawareans of access to their choice of firearm for self-defense. Indeed, Delaware may even be able to regulate the type of material that 3-D printed firearms can be made out of to ensure that 3-D printed firearms are reliable and not dangerous for the user. None of those regulations seem to place a restriction on keeping or bearing firearms. But prohibiting possession of firearms that are currently lawfully owned or future manufacturing and assembly of the same does place restrictions on keeping and bearing firearms.

Will Delaware appeal to the Third Circuit? I don’t think their odds of success are very good, given that the appellate court has already dealt with most of these issues. Still, the state might try a dual-track approach by appealing Noreika’s decision and attempting to keep the challenged laws in place, while the legislature follows her advice and adopts new and slightly less onerous restrictions on privately manufactured guns.